Attorney Mark Baker is expected to argue to the Second Circuit appellate court that Brooklyn federal court Judge Kiyo Matsumoto erred in her instruction of the jury before they began deliberating Shkreli’s fate.

The 36-year-old “Most Hated Man in America” was convicted on two counts of securities fraud and one count of conspiracy to commit securities fraud in August 2017, following a six-week trial in which prosecutors said he defrauded investors while running an $11 million Ponzi-like scheme.

He was acquitted on four other counts, which Baker claims in appellate papers shows that Matsumoto failed to accurately explain the law to the jury.

“His inconsistent acquittals and convictions are easily explained by the court’s varied jury instructions between the securities fraud related counts on the one hand, and the wire fraud conspiracies on the other,” the documents read.

Shkreli — who is serving out a seven-year sentence — will not attend the arguments, according to his trial attorney Marc Agnifilo.

Instead, the former Retrophin founder will remain incarcerated at the low-security Pennsylvania prison where he’s been housed since he was caught using a contraband cellphone earlier this year to run his new pharma company, Phoenixus AG.